auDA loses in Federal Court

In a disgraceful waste of tens of thousands of dollars of .au domain name registrant’s money, auDA took me, one of the “Grumpier.com.au three” and a former auDA Non Executive Director, to the Federal Court yesterday, and in effect lost.

Thank you for giving me the opportunity to provide a submission to auDA’s application. Whilst I am surprised to be named the sole respondent to auDA’s application, I appreciate this opportunity. I am one of three auDA Members who started the process of gathering auDA Members’ support to requisition a meeting of auDA’s Members, and I am one of 27 auDA members (comprising more than 8% of auDA’s total Membership) who ultimately petitioned auDA to call an Extraordinary General Meeting (EGM) of the members.

In writing this letter I do not seek to represent all the petitioners; but I believe that they share some if not most of the views I express here.

I do not agree with auDA’s request to extend the time for the EGM, for the reasons I outline below.

As an individual in the Australian Internet community I do not have access to funds for legal representation for this hearing. I believe this to be the case for other petitioners, who have simply exercised the rights granted to them under the Corporations Act, as a last resort.

Unfortunately, and with respect, I am unable to attend the hearing in person. My understanding is that I am not required to attend.

Background

I have been involved in the Australian Internet community since the inception of auDA. I was an elected Non Executive Director of auDA from 2001 to 2015, and I have been a Member since 2000.

I am interested that auDA continues to be an effective organisation which holds the endorsement of the Australian Government to manage .au in the interests of the Australian community. I am involved in the calling of the EGM because I believe auDA occupies a vitally important role. I do not have any other motive, and I have no ambition to return to the auDA board or management.

Multi stakeholder

The Australian Government is a major proponent for the multi-stakeholer model of Internet governance. Until 2016 auDA had been highly regarded internationally as an exemplar of multi-stakeholder Internet governance at its best.

As the US Assistant secretary of Commerce for Communications and Information, Lawrence E. Strickling said, “The multi-stakeholder model of Internet governance is the best mechanism for maintaining an open, resilient, and secure Internet because, among other things, it is informed by a broad foundation of interested parties – including businesses, technical experts, civil society, and governments – arriving at consensus through a bottom- up process regarding policies affecting the underlying functioning of the Internet domain system.”

Recent developments

As the Australian Government’s April 2018 Review of the .au Domain Administration (referred to in auDA’s submission) found, since 2016 there has been a deterioration of auDA’s transparency and accountability to its stakeholders leading to a weakening of auDA’s multi-stakeholder engagement.

The Australian Government’s Review (p18) noted that “the issue of Board stacking is of particular concern. This would suggest a manipulation of process to place directors on the Board to act in the interest of a particular membership faction, rather than in the interests of the organisation as a whole or the Australian Internet community.”

Need for EGM

I recognise that auDA is at an important juncture. It needs to put in place a new governance and management structure within a short period of time in order to satisfy the Australian Government. In my view, which I believe is shared by some Members, the current leadership and management does not enjoy the confidence of the auDA Membership to be able to successfully lead these critical reforms. In my view, the relationship and trust between the current auDA leadership and management, and auDA’s Members, is broken, borne by developments over the past two years.

I believe that it is critically important that auDA Members are given an opportunity to be heard, and to decide, whether it is content for the current leadership and management to lead auDA through these important reforms, or to put in place an alternate team that they believe would be better equipped to do so.

Extending the time for holding of the EGM would be to deny Members of a timely and effective voice that will impact on auDA’s ability to meet all the requirements of the Australian Government’s terms of endorsement, within the tight timeframe stipulated by the Australian Government.

In the current climate where I (which I believe is shared by other Members) am of the view that current leadership and management’s accountability to its Members is lacking, the calling of a Members meeting seems to be the only option available to Members where they can have a voice.

In auDA’s submission it has alluded to a number of reasons why an EGM should not be held within the time set out in the Corporations Act. In my humble opinion, those reasons ought to be put to the Members at the EGM to enable the Members to have an informed view and to decide whether or not to support the proposed resolutions.

Costs

auDA has claimed the costs of calling an EGM will be in the vicinity of $70,000. In my experience while I was a Non Executive Director of auDA we used the facilities of our law firm to hold Member meetings at negligible cost. I acknowledge that there may be some travel costs for the attendance of directors based outside of Victoria, but that ought not be a valid reason for delaying the EGM.

I am disappointed that auDA would prefer to use Member funds to incur costs associated with this application rather than hear the voices of Members at an EGM.